New legal guidance for universities on how to deal with alleged student misconduct – including violence against women, harassment and hate crimes – has been issued by Universities UK, the umbrella organisation for sector leaders, and it’s a welcome step forward.
For the first time, it recognises that universities themselves can initiate disciplinary action for possible criminal offences and can also impose precautionary measures, such as the exclusion or suspension of an accused student.
The problem is that the guidance applies to a multitude of crimes – and one size does not fit all. The issues that arise in relation to allegations of theft or criminal damage are very different from those that relate to sexual misconduct.
The definition of rape
The guidance states that it is “unreasonable and dangerous” (p10) for a university to make a finding of rape, and states that “the alleged ‘offence’ will be different” (p12) in a disciplinary process. This is technically correct. A university cannot find anyone guilty of the criminal offence of rape, as it is not a criminal court. However, the example sets out misconduct as “sexual intercourse without consent” (p14), which is in essence the definition of rape.
So in determining “whether the alleged facts and matters occurred” (p10), albeit to a lower threshold of proof than in a criminal trial, the disciplinary panel is in effect called to determine whether it is more likely than not that a rape occurred. The facts of the case will be the same whether it is called rape or “sexual misconduct”.
Universities are left in the difficult position of having to investigate and gather evidence as to whether the rape happened. And they are not given any further guidance as to what constitutes appropriate evidence.
Nor are universities guided as to who should gather evidence and exactly what training such an investigator should undergo, for example, in order to satisfactorily question witnesses.
Myths about victims
Given that in very many rape and sexual assault cases the issue is not if the incident occurred but whether or not it was consensual, it is very likely that investigators, and then disciplinary panels, will find themselves having to assess the credibility of conflicting accounts.
It is here that I think there is most cause for concern. It is well-documented in research that sexual offences evoke responses based on societal attitudes and beliefs around appropriate sexual behaviour. People make assumptions about consent and credibility based on “rape myths” which tend to blame the victim and justify the behaviour of the perpetrator. These myths relate to how the victim was dressed, her alcohol consumption, whether she flirted or somehow “invited” the assault, whether she resisted, how she behaved during and after the assault and her general sexual behaviour.
Are university administrators and managers somehow exempt from having such attitudes? Particularly worrying in this regard is a reference to “the facts and matters leading to an allegation” (p10) which could be interpreted as inviting universities to assess exactly these types of factors.
The criminal justice system recognises and makes provision for the complexities of decision-making in sexual offence cases: judges must attend intensive residential training courses, juries are to be directed about reliance on rape myths, and there is a set of rules relating to the admissibility of sexual history evidence and the capacity to consent.
Yet the UUK’s guidance for universities is silent on these key issues of rape myths and victim-blaming.
Gaps in the guidelines
The guidance suggests that terms such as “consent” – which may need interpreting in a disciplinary process – be defined in the university’s code of conduct. It recommends that the legal definition of consent be used, yet that definition itself has been subject to much academic criticism for its lack of clarity. It would be better for the UUK to offer a definition for universities to use.
There are some very positive recommendations, such as that victims be protected in evidence-giving, for example, by use of video link, and that the accused student has the right to hear the evidence against them.
But despite the excellence of the steering group in their own fields, the absence of sexual offence lawyers has led to some worrying gaps in the guidance. I think that the legal guidance should be revisited by UUK. More detailed pointers on how to gather and assess evidence, and the appropriate training required for investigators and adjudicators, needs to be set out.
Rachel Fenton writes about sexual offences law and is principal investigator for The Intervention Initiative, a bystander intervention for the prevention of sexual and domestic violence in university settings.
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